WoodRuff, J".
By the act of 1853, (Laws of 1853, 1166, § 5),. relating to the Marine Court, an appeal to the general term is authorized from a judgment entered by direction of a single justice of the said court, in the same manner and with the like effect as appeals in the Supreme Court from the decision of a single judge to the general term.
Although the previous portion of the section relates to, and gives power to open, defaults, and the whole section is, in its frame and phraseology, liable to some criticism, as wanting in clearness and perspicuity, I think the meaning is intelligible, and I entirely concur with the judge at special term that the right of appeal given by the statute is not confined to judgments by default. This opinion has heretofore been expressed in this court, and I am informed that the general term of the [287]*287Supreme Court in this district have given to this section the same construction.
What then is the effect of an appeal to the general term of the Supreme Court? Section 348 of the Code declares in relation to that court that an appeal upon the law may be taken from a judgment entered upon the report of referees on the direction of a single judge of the same court in all cases ; and upon the fact, when the trial is by the court or referees. Under this section it seems to me very clear that when a cause is tried by the court or by referees, the effect of an appeal is to bring under review by the general term questions of law and fact both, and that the general term has thereby jurisdiction to reverse for error in either. But unless the case is tried by the court, or by referees, an appeal only lies upon the law, and the general term has no jurisdiction for any purpose except to review the questions of law arising on the trial or appearing on the record.
It is obvious that judgments, “ entered by direction of a single judge,” must in this section include judgments entered upon the verdict of a jury, for otherwise no appeal whatever would lie from such judgments. They are not provided for at all, unless so included. Although it is true that the clerk is directed by the Code to enter judgment according to the verdict, yet his act is purely ministerial; that duty is made in terms subject to the direction of the judge, and is done in every practical sense under his immediate sanction.
Appeals to the general term in the Marine Court have by the statute the same effect. When the case is tried by the court the appeal lies upon the law and the facts, and the general term has power to review his finding upon either or both. And when the case is tried by a jury an appeal lies upon the law and brings questions of law under review, and nothing else.
Motions for a new trial in the Supreme Court, as also in the Common Pleas, on the ground that a verdict is against evidence, or that the damages are excessive and the like, where the trial is before a jury, are not originally cognizable by the general term. They are regularly and properly made at spe[288]*288cial terra and before judgment, and the jurisdiction of the general term over such motions is obtained by appeal from the order of the special term under a different section of the Code, (§ 349), and not by an appeal from the judgment. There is nothing in the statute above referred to relating to the Marine Court, nor so far as I have been able to discover in any other statute, giving that court power either at general term or before a single judge, to entertain a motion for a new trial as such, nor to review the finding of the jury upon the facts, and set it aside either as against evidence or because the court deem the damages excessive.
If, therefore, it could be made to appear that the appeal taken to the general term of the Marine Court, after the verdict of the jury and judgment thereon, was a mere appeal upon the facts, and was entertained by the general term as a review of the finding of the jury upon the evidence, without any error of law having occurred on the trial, and that the decision on the appeal was an exercise of a supposed authority to set aside a verdict as against evidence, or on the ground that the damages were excessive, I should say without hesitation that the general term of that court had no jurisdiction of any such question, and no power over the judgment, for any such purpose; and therefore that we ought not to order a transcript of the judgment to be set aside by reason of any such order of that court. It may be that in order to avoid the effect of such an order upon the docket of the judgment in that court, and obtain an execution there, the plaintiff would be compelled to resort to the supervisory power of the Supreme Court by mandamus, but if it clearly appeared that the order of the general term was without jurisdiction, we ought not to set aside the transcript, but should permit the plaintiff to take such benefit of the transcript and docket with the clerk of the county, and have such means of enforcing his rights under it, as the statutes have given him, without interference on our part to stay his proceedings.
The plaintiff here insists that the order of the general term was wholly without jurisdiction; the views above presented tend to sustain that proposition, if the facts were as assumed by the appellant’s counsel, but the only evidence that the [289]*289appeal brought to the general term, and entertained by them as the basis of their order of reversal and for a new trial, was entertained as a mere review of the finding of the jury upon the facts, is an affidavit that no exceptions were taken on the trial to the rulings of the justice, nor to his charge to the jury. This is not enough — it was never intended that the formal and technical rules governing the practice in the higher Courts should be applied in strictness to that Court. The proceedings on a trial there are informal, the pleadings oral; they have in technical strictness no judgment roll. Their judgment record is a justice’s docket. There is, then, no bill of exceptions. I have, therefore, no doubt that, on an appeal from the judgment upon the law, as decided by the judge on the trial, or as contained in his instructions to the jury, if the general term found errors in law had been committed, it was within their power, and in accordance with their duty, if palpable injustice was caused thereby, to reverse the judgment and order a new trial. The condition which was annexed would seem, in some degree, to indicate that they deemed the damages excessive; but this is not the necessary nor conclusive inference, — it is possible that they found that an error of law was committed in respect to some particular ground or subject of recovery, the extent of which they could measure, so that no injustice could happen to the defendant by affirming the judgment for the reduced amount, if the plaintiff so elected. If the condition annexed to the reversal was founded in this idea, the plaintiff is not injured thereby, for he is not bound to accept the condition tendered to him.
Without pursuing this branch of the inquiry further, it must suffice to say that the mere affidavit presented by the plaintiff on this motion is not sufficient to show that the appeal in question was not an appeal upon the law, of which the general term of the Marine Court had jurisdiction, and we cannot, upon the papers before us, say that their order of reversal was not within their power and authority.
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WoodRuff, J".
By the act of 1853, (Laws of 1853, 1166, § 5),. relating to the Marine Court, an appeal to the general term is authorized from a judgment entered by direction of a single justice of the said court, in the same manner and with the like effect as appeals in the Supreme Court from the decision of a single judge to the general term.
Although the previous portion of the section relates to, and gives power to open, defaults, and the whole section is, in its frame and phraseology, liable to some criticism, as wanting in clearness and perspicuity, I think the meaning is intelligible, and I entirely concur with the judge at special term that the right of appeal given by the statute is not confined to judgments by default. This opinion has heretofore been expressed in this court, and I am informed that the general term of the [287]*287Supreme Court in this district have given to this section the same construction.
What then is the effect of an appeal to the general term of the Supreme Court? Section 348 of the Code declares in relation to that court that an appeal upon the law may be taken from a judgment entered upon the report of referees on the direction of a single judge of the same court in all cases ; and upon the fact, when the trial is by the court or referees. Under this section it seems to me very clear that when a cause is tried by the court or by referees, the effect of an appeal is to bring under review by the general term questions of law and fact both, and that the general term has thereby jurisdiction to reverse for error in either. But unless the case is tried by the court, or by referees, an appeal only lies upon the law, and the general term has no jurisdiction for any purpose except to review the questions of law arising on the trial or appearing on the record.
It is obvious that judgments, “ entered by direction of a single judge,” must in this section include judgments entered upon the verdict of a jury, for otherwise no appeal whatever would lie from such judgments. They are not provided for at all, unless so included. Although it is true that the clerk is directed by the Code to enter judgment according to the verdict, yet his act is purely ministerial; that duty is made in terms subject to the direction of the judge, and is done in every practical sense under his immediate sanction.
Appeals to the general term in the Marine Court have by the statute the same effect. When the case is tried by the court the appeal lies upon the law and the facts, and the general term has power to review his finding upon either or both. And when the case is tried by a jury an appeal lies upon the law and brings questions of law under review, and nothing else.
Motions for a new trial in the Supreme Court, as also in the Common Pleas, on the ground that a verdict is against evidence, or that the damages are excessive and the like, where the trial is before a jury, are not originally cognizable by the general term. They are regularly and properly made at spe[288]*288cial terra and before judgment, and the jurisdiction of the general term over such motions is obtained by appeal from the order of the special term under a different section of the Code, (§ 349), and not by an appeal from the judgment. There is nothing in the statute above referred to relating to the Marine Court, nor so far as I have been able to discover in any other statute, giving that court power either at general term or before a single judge, to entertain a motion for a new trial as such, nor to review the finding of the jury upon the facts, and set it aside either as against evidence or because the court deem the damages excessive.
If, therefore, it could be made to appear that the appeal taken to the general term of the Marine Court, after the verdict of the jury and judgment thereon, was a mere appeal upon the facts, and was entertained by the general term as a review of the finding of the jury upon the evidence, without any error of law having occurred on the trial, and that the decision on the appeal was an exercise of a supposed authority to set aside a verdict as against evidence, or on the ground that the damages were excessive, I should say without hesitation that the general term of that court had no jurisdiction of any such question, and no power over the judgment, for any such purpose; and therefore that we ought not to order a transcript of the judgment to be set aside by reason of any such order of that court. It may be that in order to avoid the effect of such an order upon the docket of the judgment in that court, and obtain an execution there, the plaintiff would be compelled to resort to the supervisory power of the Supreme Court by mandamus, but if it clearly appeared that the order of the general term was without jurisdiction, we ought not to set aside the transcript, but should permit the plaintiff to take such benefit of the transcript and docket with the clerk of the county, and have such means of enforcing his rights under it, as the statutes have given him, without interference on our part to stay his proceedings.
The plaintiff here insists that the order of the general term was wholly without jurisdiction; the views above presented tend to sustain that proposition, if the facts were as assumed by the appellant’s counsel, but the only evidence that the [289]*289appeal brought to the general term, and entertained by them as the basis of their order of reversal and for a new trial, was entertained as a mere review of the finding of the jury upon the facts, is an affidavit that no exceptions were taken on the trial to the rulings of the justice, nor to his charge to the jury. This is not enough — it was never intended that the formal and technical rules governing the practice in the higher Courts should be applied in strictness to that Court. The proceedings on a trial there are informal, the pleadings oral; they have in technical strictness no judgment roll. Their judgment record is a justice’s docket. There is, then, no bill of exceptions. I have, therefore, no doubt that, on an appeal from the judgment upon the law, as decided by the judge on the trial, or as contained in his instructions to the jury, if the general term found errors in law had been committed, it was within their power, and in accordance with their duty, if palpable injustice was caused thereby, to reverse the judgment and order a new trial. The condition which was annexed would seem, in some degree, to indicate that they deemed the damages excessive; but this is not the necessary nor conclusive inference, — it is possible that they found that an error of law was committed in respect to some particular ground or subject of recovery, the extent of which they could measure, so that no injustice could happen to the defendant by affirming the judgment for the reduced amount, if the plaintiff so elected. If the condition annexed to the reversal was founded in this idea, the plaintiff is not injured thereby, for he is not bound to accept the condition tendered to him.
Without pursuing this branch of the inquiry further, it must suffice to say that the mere affidavit presented by the plaintiff on this motion is not sufficient to show that the appeal in question was not an appeal upon the law, of which the general term of the Marine Court had jurisdiction, and we cannot, upon the papers before us, say that their order of reversal was not within their power and authority.
But upon another ground it seems to me that the plaintiff’s objection to the jurisdiction of that Court to reverse their judgment must be sustained. Neither the Supreme Court, nor the Marine Court, (in which latter appeals have no greater effect,) [290]*290have power to authorize an appeal to be taken to the General Term, nunc pro tunc, after the thirty days, limited by the statute have passed. (Code, §§ 332, 405; Renouil v. Harris, 2 Sand. R., 641; Powell v. M’Cormick, 5 How. Pr. R., 337; Enos v. Thomas, Ib., 361.) They cannot do this directly nor indirectly. (Humphrey v. Chamberlain, 1 Kern., 274.) No appeal was taken in this case until more than sixty days after judgment, and after the defendant had notice of such judgment, as appears by the papers on the day it was entered, and himself procured time to make a case, and stayed the plaintiff’s proceedings.
The right of appeal was, I think, gone, and the jurisdiction of the general term to review the judgment failed by the lapse of the thirty days. For this reason I think that the order of the general term was void, and did not entitle the defendant to have the transcript filed with the County Clerk, and the docket there vacated.
For this reason I think the order at special term should be reversed; but as the questions are for the most part new, the reversal should be without costs.
The People a. The Justices ef the Marine Court, Ante, 126, 240.